Guest Commentary

Opinion: Alimony In Conn: Past, Present And Future

The Connecticut Law Tribune

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Alimony reform is upon us. Last year, Massachusetts dramatically changed its alimony laws. Alimony legislation has been proposed in Florida and New Jersey. Three years ago, New York adopted guidelines for temporary alimony.

Two bills which would modernize alimony have been proposed in Connecticut during the legislature's last two sessions. Connecticut's Legislative Review Commission has constituted an Alimony Study Committee, whose work is underway. A look at alimony in Connecticut, historically and currently, may help to inform alimony reform. Alimony's origins trace to the English system, under which originally absolute divorce required an act of Parliament and was, as a result, unusual. In cases of absolute divorce, because a husband retained control of his wife's property, he also retained the obligation to support her. That obligation carried over into more modern times.

In Colonial times, Connecticut's courts acknowledged the right of a man divorced for the adultery of his wife to marry again. The courts also entered decrees of separation on grounds of adultery and malicious desertion by the husband, making provision for alimony and granting permission to the injured party to marry again.

Connecticut's courts uniformly euphemistically cited fault as the justification for alimony. The liability to pay alimony "is based upon the duty of the husband to continue to support a wife whom he has, in legal effect, abandoned." See e.g., Christiano v. Christiano, 131 Conn. 589, 594 (1945); Heard v. Heard, 116 Conn. 632 (1933); Cary v. Cary, 112 Conn. 256 (1930); Wright v. Wright, 93 Conn. 296 (1919).

In other states, alimony was said to stem from the assumption that women would be unable to support themselves through employment. Nonetheless, before 1973, in Connecticut alimony was primarily the price a wayward husband paid.

In 1973 Connecticut's divorce laws were modernized. As a result, a fault ground is no longer required, and divorces almost always enter because of the irretrievable breakdown of the marriage. (1973 Public Act 73-373, Sec. 1, now codified at Connecticut General Statutes Sec. 46b-40(c)). Adultery by the recipient is not a bar to alimony. See Conn. G.C.S. Sec. 46b-82; cf. Fricke v. Fricke, 1991 WL 59436.) While marital fault, i.e., the "causes for the dissolution," is still considered in fashioning alimony awards, the purpose of alimony is no longer to punish guilty husbands for their transgressions.

Connecticut's "new" 1973 alimony statute, Section 46b-82 of the General Statutes, paralleled the old statute and directed the trial courts, in fashioning alimony, to consider length of the marriage, the causes for the divorce, and the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. See Tobey v. Tobey, 165 Conn. 742, 749, n. 2.

Connecticut's alimony statute, however, does not inform about when a court should award alimony and, if so, how much and for how long. As a result, even experts disagree about what alimony is appropriate in a given case. Recently, a group of preeminent Connecticut matrimonial lawyers was asked to evaluate alimony in a simple case. The range of outcomes was as little as $25,000 to as much as $75,000 per year. Those lawyers agreed that court-ordered alimony awards are unpredictable and inconsistent.

This situation is not unique to Connecticut: "[T]here are two significant and related problems associated with the setting of spousal support. The first is a lack of consistency resulting in a perception of unfairness. From this flows the second problem, which is an inability to accurately predict an outcome in any given case." Mary Kay Kisthardt, "Report of the American Academy of Matrimonial Lawyers on Considerations when Determining Alimony, Spousal Support or Maintenance," discussed in Charles Vuotto Jr., "Alimony Trends," New Jersey Family Lawyer, Vol. 33, No. 1, p. 6 (June 2012).

Nonetheless, it has been suggested that there is a "simple and very important reason for this lack of uniformity: Every matrimonial case is different." Cary Cheifitz, "Alimony Guidelines: If It Ain't Broke, Don't Fix It," New Jersey Family Lawyer, Vol., No. 1, p. 27 (June 2012). That "reason" misses the mark. When presented with the same case, Connecticut matrimonial lawyers and judges reach inconsistent alimony results.

What's being said

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    The impetus against alimony reform goes far deeper than reducing the amount of billable time lawyers can charge for. The state and court system receive matching funds from the Federal Government, under the Child Support Enforcement Act. Under Title 42, Chapter 7, subchapter4, part IV, sections 651 through 659. The state/court system is reimbursed 66 cents on the dollar for money awarded in Child support, alimony and legal fees up to an amount of over $500 MILLION dollars. For 200 years, the court system functioned without this money. This kickback has been present for about 2 decades. This kickback has corrupted the practice of divorce law, by incentivizing too much alimony, child support and legal fees than are truly necessary and that the more economically successful spouse can realistically provide.

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